THE COURT OR THE LAW?

In the much criticized 2015  Saskatchewan Federation of Labour decision of the Supreme Court of Canada the criticism focussed personally on Justice Rosalie Abella, who wrote the decision. But she wasn’t writing just for herself, she also had to get the agreement of the four other Justices to create the five judge majority.

The critics have complained that the decision simply created a right to strike out of thin air, by reading it into the Charter of Rights.  But that’s not what the case actually decided. The Court overruled a Saskatchewan law that gave the government almost unlimited power to prohibit public service strikes, without the usual safeguard through binding arbitration or a similar mechanism for resolution. It was the unilateral nature of the government’s power that became the legal poison pill. Here’s a key paragraph from the judgment:

[97]  Where a strike is prohibited, there must be a meaningful dispute resolution mechanism to resolve the bargaining impasse. The most common such mechanism is third-party arbitration. In the absence of such a mechanism, the restriction on the right to strike is not minimally impairing.

If critics had considered the law in issue they would have seen that the Saskatchewan government essentially wrote itself a “blank cheque” for resolving disputes with its unions. By focusing on the Court instead of the law, critics avoid acknowledging that the government wrote a lousy law. It failed to meet the basic standards of the constitutional test for justifying a government legislating a limit on a Charter right (the Oakes Test).

THE DIFFERENCES IN CONSTITUTIONAL DESIGN

There is a key difference in constitutional design that often eludes the critics of Charter decisions. Rights are not absolute, they have limits. To impose these limits Canada uses an “External Limitation” design (the limitation is in Charter Section 1), whereas some other countries use an “Internal Limitation” model.

In an internal model, both the constitutional right and its specific deal-breaker limits are written in the same paragraph. This makes the rights look more restricted on paper, while the Charter makes rights look absolute – until you turn back to Section 1.

Here are two examples of constitutions that list specific exceptions directly within the rights themselves:

1. The Constitution of India

Right to Freedoms in Article 19.

Article 19 guarantees fundamental freedoms (speech, assembly, association) but immediately follows each one with a list of grounds for reasonable restrictions:

(1) All citizens shall have the right— … .  (c) to form associations or unions; … .

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

2. The Constitution of South Africa

South Africa has a hybrid model. While it has a general limitation clause (Section 36) similar to Canada’s Section 1, it also uses internal “carve-outs” for specific rights to define what is not protected.

Freedom of expression (s. 16).

(1) Everyone has the right to freedom of expression, which includes …. .

(2) The right in subsection (1) does not extend to …. (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

WHY THIS MATTERS

In Canada, because Charter Section 2(d) just says “Everyone has… freedom of association,” critics see the Saskatchewan decision and think the Court “invented” a right to strike with no bounds.

If our Charter were written like the Indian Constitution, it might have said:

“Everyone has the right to strike, provided that the state may impose reasonable restrictions in the interest of preserving the provision of essential public services.”

Because Canada’s restrictions are tucked away in Section 1, critics often ignore them and assume the right is open-ended and limitless, when in reality, Section 1 does the same job as the internal lists in these other constitutions. It just does it at the end of the legal analysis rather than at the beginning.

With that background, let’s take a closer look at the Saskatchewan Federation of Labour case.

OVERVIEW

In this landmark decision the Supreme Court of Canada recognized that the right to strike is constitutionally protected under Section 2(d) of the Canadian Charter of Rights and Freedoms (Freedom of Association). Justice Abella, writing for the majority, persuaded four other justices to adopt her reasons. It is unfair to her for critics to characterize this decision as if she was the only judge who took this point of view.

THE MAJORITY’S DECISION

Although the majority held that the ability of employees to strike is an indispensable component of meaningful collective bargaining they did not decide that the right to strike could never be limited – only that it could not be limited in the way Saskatchewan had attempted to do it.

THE DISSENT

The two dissenting Justices argued that the Charter does not mandate a particular model of labour relations, and that the right to strike is a matter of policy that should be left to the legislature.

THE KEY LEGAL PRINCIPLES

Indispensability: The right to strike is the only way for employees to balance the inherent power imbalance between themselves and their employers.

Section 1 Analysis: While the government may limit the right to strike for essential services, the Saskatchewan legislation was found unconstitutional because it allowed the government to unilaterally define “essential” without an impartial review process or a meaningful alternative, (usually, binding arbitration). There was nothing in this overly-broad law to prevent Saskatchewan from declaring every government employee to be providing an essential service, thereby prohibiting all strikes.

THE MISUNDERSTOOD LIMITS OF THE DECISION

1. The “Right to Strike” is Not Absolute

The Majority explicitly acknowledged that the Province has a legitimate interest in ensuring the interruption of essential services does not threaten health and safety. The Court did not say everyone has an unlimited right to walk off the job at any time; it said the government cannot arbitrarily take that right away without a fair trade-off.

2. The Arbitration Factor (The Missing Piece)

If the Saskatchewan law had included mandatory, independent, binding arbitration, it likely would have survived. The Court’s primary issue was that the law took away the power to strike (the employees’ leverage) but gave them nothing to replace it. This left the employer (the government) with 100% of the power to dictate terms of employment.

3. The Myth of “No Limits”

Commentators often overlook that the Saskatchewan legislation was subject to Section 1 of the Charter. This means:

• The government can still limit strikes.
• The government can still designate essential workers.
• But, they must prove the limit is narrowly tailored and provides a neutral way to resolve the dispute.

4. The Majority’s Logic on “Power Balance”

The decision was about restoring a power balance. Without either a strike possibility or a neutral arbitrator, collective bargaining is just collective begging. The ruling didn’t hand victory to unions; it simply removed the government’s ability to be both the employer and the judge/jury of the collective agreement.

CONCLUSION

There is a classic tension in how the public perceives the judiciary: critics often attack the result (the Court’s decision) because it’s easier than engaging with the Court’s reasoning or examining the flawed legislation that triggered it. In fairness, we should look at both the law in issue and the Court’s decision about it.